Who said what: Excerpts from SC judges on Sabarimala and Rafale verdicts

The endeavour of the petitioners is to resuscitate the debate about what is essentially religious, essential to religion and integral part of the religion.

Published: 15th November 2019 02:11 AM  |   Last Updated: 15th November 2019 12:24 PM   |  A+A-

Supreme Court

Supreme Court (Photo | PTI)

By Express News Service

‘Both sections of same religious group have a right to freely practise their religious beliefs’

Excerpts from the majority 

judgment by CJI Gogoi and Justices Khanwilkar & Malhotra:

The endeavour of the petitioners is to resuscitate the debate about what is essentially religious, essential to religion and integral part of the religion.In the Indian context, given the plurality of religions, languages, cultures and traditions, what is perceived as faith and essential practices of the religion for a particular deity by a section of the religious group, may not be so perceived (as an integral part of the religion) by another section of the same religious group for the same deity in a temple at another location. Both sections of the same religious group have a right to freely profess, practise and propagate their religious beliefs as being integral part of their religion by virtue of Article 25 of the Constitution of India.

The individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion.  This is broadly what has been contended. 

The debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is yet another seminal issue pending for consideration in this Court regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respectof female genital mutilation in Dawoodi Bohra community. 

It is time this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.  The decision of a larger bench will put at rest recurring issues touching upon the rights flowing from Articles 25 and 26.  It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together.  

In the context of the present strength of Judges of Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges.  

It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No.18889/2012);  and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review.  The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out. 

‘No basis for argument that ruling will be used to undermine rights of others’

Excerpts from the dissenting judgment by Justices Nariman and Chandrachud:

IT was then stated that the judgments of Dipak Misra, C.J. and Chandrachud, J., in relying upon “constitutional morality”, suffered from an error apparent, in that constitutional morality is a vague concept which cannot be utilised to undermine belief and faith. Here again, apart from the fact that “constitutional morality” has now reached the level of stare decisis, and has been explained in several Constitution Bench judgments, reliance thereon cannot be said to suffer from any error apparent. Constitutional law and constitutional interpretation stand on a different footing from interpretation of statutes. Constitutional law keeps evolving keeping in view, among other things, the felt necessities of the time. 


Extreme arguments were made...stating that belief and faith are not judicially reviewable by courts, and that this Court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto. Such arguments need to be rejected... Not only do they not constitute “errors apparent”, in the face of Article 25. Article 25, as has been held by the majority judgments, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis. The slippery-slope argument that this judgment will be used to undermine the religious rights of others, including religious minorities, is wholly without basis. 

The ratio of the majority judgments in this case is only that the exclusionary practice of keeping women from the ages of 10 to 50 from exercising their right of worship in a particular Hindu temple falls foul of Article 25 of the Constitution of India inasmuch as (i) all persons are equally entitled, when they belong to the same religious group, to exercise their fundamental right of practicing religion; and (ii) that this is a case covered by Article 25(2)(b), which deals with throwing open all Hindu religious institutions of a public character to all classes and sections of Hindus.

Emotive arguments were made on how women between the ages of 10 to 50 are not kept out on account of menstruation as a polluting agent, but on account of the deity being a Naisthik Brahmachari...These are all arguments that ...are fully dealt with by all the judgments. Re-arguing this aspect...obviously does not fall within the parameters of a review petition.

An argument was made that there are gender restrictions in other places of worship, which, being essential religious practices, have not been interfered with. This... needs to be rejected on the ground of vagueness, apart from the fact that this is not an argument which could be made in review. As and when such gender restrictions in other places of worship are tested, they’ll be decided on their own merits keeping in view the provisions of the Constitution. 

Rafale: ‘There can’t be a roving and fishing enquiry’

Excerpts from the judgment by CJI Ranjan Gogoi and Justice S K Kaul

It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation.

On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.

This Court did not consider it appropriate to embark on a roving and fishing enquiry. 

The other aspect sought to be raised specifically in Review Petition is that the prayer made by the petitioner was for registration of an FIR and investigation by the CBI, which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts. We do not consider this to be a fair submission.No doubt that there was a prayer made for registration of FIR and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.

Insofar as the decision making process is concerned, on the basis of certain documents 
obtained, the petitioners sought to contend that there was contradictory material. We, however, found that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.

‘Probe agency expected to be independent of the govt’

Excerpts from the separate judgment by Justice K M Joseph

There appears to be considerable merit in the case of the petitioners that in this regard, this Court had fallen into clear error that there was possibly an arrangement between the parent Reliance Company and Dassault dated back to the year 2012. The parent Reliance Company which was referred in the judgment is Reliance Industries which is a completely different corporate body from Reliance Infrastructure which appears, according to the petitioners, to be the parent company of RAL. From the standpoint of the jurisdiction in judicial review proceedings and under Article 32 of the Constitution, as also absence of any substantial material to show to be a case of commercial favouritism, it may be true that the findings other than which has been referred to may not disclose a palpable error.

Even proceeding on the basis that on petitioner’s complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that though otherwise the petitioners may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the PCA, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent from taking action.

It is quite clear that the first respondent, the premiere investigating agency, is expected to act completely independent of the government.  

If the complaint of the petitioner does make out the commission of the cognizable offence and FIR is to be registered and matter investigated, it will be no answer to suggest that this Court, has approved of the matter in judicial review proceedings under Article 32 and making it clear that entire exercise must be viewed from the prism of the limited judicial review the Court undertakes in such proceedings and this Court would end up paying less than lip service to the law laid down by the Constitution Bench in Lalita Kumari (supra).

7 issues that 7-judge bench has to decide:

  • The interplay between freedom of religion under Articles 25 and 26 and other provisions in Part III, particularly Article 14
  • What is the sweep of the expression ‘public order, morality and health’ occurring in Article 25(1)
  •  The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over-arching morality in reference to the Preamble or limited to religious beliefs/faith 
  • The extent to which court can enquire into the issue of a particular practice being an integral part of a religion or religious practice of a particular religious denomination
  • What is the meaning of expression ‘sections of Hindus’ appearing in Article 25(2)(b)
  • Whether ‘essential religious practices’ of a religious denomination or a section thereof are afforded constitutional protection under Art 26
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who don’t belong to such denomination?
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